The Australian Government today announced it is going ahead with an ineffective “strategy” to “tackle” online copyright infringement, which puts a gun to the head of ISPs by requiring undue compromise with the copyright industry or face legislative regulation. Despite being demonstrably futile, the Government will be pursuing both a notification scheme and court-ordered website blockades. The Pirate Party opposed both as neither will reduce infringement in Australia and do not address the more pressing issues of accessibility and affordability, instead targeting normal human behaviour.
It appears copyright holders will be able to request that an Internet service provider (ISP) sends an educational notice to an alleged infringer, with no actual penalty attached. Copyright holders will also be able to seek an injunction that requires ISPs to block access to websites that allegedly infringe copyright or facilitate infringement. Groups including “wifi providers” and “libraries” are also unreasonably expected to act as “copyright cops” according to an FAQ on the Minister for Communication’s website.
“This proposal is effectively the beginning of an Australian version of the failed US Stop Online Piracy Act. Notification schemes, graduated response schemes and website blocking do not work. They are costly, ineffective and disproportioned, as evidenced by academia and decisions of foreign courts. Fighting the Internet itself as opposed to solving the lack of convenient and affordable access does not work, nor does propping up business models that rely upon the control of content consumption in the digital environment,” commented Brendan Molloy, President of the Pirate Party.
These points have been refuted strongly by the Pirate Party and others in their submissions on the Government’s Online Copyright Infringement discussion paper. The efficacy of blocking websites was examined in a Dutch Court of Appeals case earlier this year, where the Court found there was insufficient evidence that blocking the Pirate Bay was effective at reducing copyright infringement and ordered that the blockade could be lifted. The Pirate Party arranged a translation of the judgment, which is available from the Pirate Party’s website.
Proposals to allow copyright holders to seek injunctions that require Internet service providers (ISPs) to block subscribers’ access to allegedly infringing websites will allegedly be presented to the Federal Cabinet today. Coincidentally, the Pirate Party is pleased to publish its recently-commissioned translation of a Dutch Court of Appeals case (ECLI:NL:GHDHA:2014:88) that casts significant doubt on the efficacy of blocking websites.
The Pirate Party arranged and crowdfunded a certified translation of the case involving two ISPs, Ziggo and XS4All, and Dutch anti-piracy association BREIN. The translation was carried out by Sydney translation service Linguistico and the Pirate Party has published the translation under the Creative Commons Zero licence, allowing unrestricted use.
“Today the Pirate Party has demonstrated that it is willing to put its money where its mouth is and contribute to the commons. This translation is a significant piece of evidence that can be used to campaign against Internet censorship,” said Brendan Molloy, President of the Pirate Party.
“What this judgment makes exceedingly clear is that website blocking is ineffective and disproportionate for the many reasons we outlined in our submission on the Government’s Online Copyright Infringement discussion paper.”
Many submissions to the inquiry, including the Pirate Party’s, argued that the discussion paper attempted to solve a problem that does not exist, while acknowledging yet overlooking the major issue of access to content.
“What is known to solve the ‘piracy problem’ is providing consumers with convenient, timely and affordable access to the content they wish to acquire, and these alleged proposals will regress Australian copyright, not progress it,” commented Mr Molloy. “Another look at the recommendations of the ALRC ‘Copyright and the digital economy’ review certainly wouldn’t go astray.”
The Pirate Party thanks all of the supporters who contributed to the crowdfunding campaign that made this important translation possible.
On Thursday, the Government introduced data retention legislation into the House of Representatives as the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. The AFP has confirmed, even before the legislation has been voted upon in Parliament, that data retention will be used for copyright enforcement. The legislation also confirms that the exact location of mobile phone users will be stored as part of these provisions.
“There are far too many flaws in this legislation to enumerate,” said Brendan Molloy, President of the Pirate Party.
“There has been no discussion as to why the current retention order provisions are insufficient. This legislation is disproportionate and unnecessary. ‘Metadata’ is ill-defined in such a way as to contain so much information that it is effectively the content of the communication, insofar that it contains the context and location of all communications. This is a massive issue for journalists, whistleblowers, activists, and a whole host of other persons whose activities are in many cases legal but perhaps not in the interests of the state to let happen without some level of harassment.
“There are significant issues relating to cost and security of the data. Steve Dalby of iiNet said yesterday that iiNet would consider storing the data where it is the cheapest, which includes Chinese cloud providers. There will be a significant ‘surveillance tax’ introduced by retailers to cover the costs of storing this data that nobody wants stored.
“Now we have it admitted by the AFP today that this legislation will be used for something completely unrelated to national security: copyright enforcement. The legislation hasn’t passed and yet already the scope is creeping! They are taking away our right to free expression and privacy to protect the profits of a few large corporations.
The Pirate Party wishes to draw attention to the TPP ministerial meeting to occur tomorrow, 25 October 2014, and continues to reiterate the demand that the draconian text be made public.
Tomorrow, 25 October 2014, Sydney will host a meeting of trade ministers from countries currently negotiating the Trans-Pacific Partnership Agreement (TPP). The aim of the meeting is to conclude the “basic elements of the agreement before the end of the year,” despite the last four years of negotiations being fraught with fundamental disagreements. Of enormous public concern is the lack of transparency surrounding what is intended to be a comprehensive agreement: at this point in time, no drafts have been officially made available for public comment or consideration.
“Recent leaks show the negotiators have learned nothing from the public outcry over previous leaks. The negotiators are pushing ahead with paradigm-shifting intellectual property provisions in the interests of entrenched American corporations, going above the sovereign parliaments of their own nations. Once the document is signed, it is very unlikely to be changed, and very likely to be waved through Parliament with limited oversight. This is legislation through the backdoor; corporate capture of democracy,” commented Brendan Molloy, Pirate Party President.
“It is beyond time that the text was made public. We have seen the content of it through leaks, and what we have seen would have a significantly negative impact on everything from freedom of expression, access to knowledge and access to medicine, all in the interests of American corporations. This agreement is not in the national interest.”
A recent leak of the Trans-Pacific Partnership Agreement (TPP) draft intellectual property chapter shows that negotiators remain divided over key issues. The leak reveals that in May 2014 there was limited agreement on the intellectual property provisions, despite the negotiations being ongoing since at least 2008. The TPP is notorious for the secrecy of its negotiations and the exclusion of the public despite it being widely known that some corporate lobbyists have had access to draft texts and a strong hand in influencing negotiating positions.
Of concern are draft provisions that would substantially increase the cost of medical treatment, both domestically and in other participating countries, which demonstrates the strong lobbyist influence on the negotiations. Other provisions may expand Internet service provider surveillance of subscribers, expand what can be patented, and seriously undermine competition by strengthening monopoly rights.
“It is time for the game of secrecy to end. The negotiations seem to be going around in circles and be contrary to the stated positions of the negotiating nations. They fly in the face of expert opinions, and consultations thus far have been little more than shams,” said Brendan Molloy, Pirate Party President.
“Negotiating in this fundamentally undemocratic way will see the involved nations saddled with obligations designed by lobbyists for the benefit of lobbyists, and by the time we find out exactly what those obligations are it’ll already be signed and imposed upon us,” Mr Molloy continued.
Of enormous concern is the removal of an article that would ensure Article 31 of the TRIPS Agreement remained fully effective. Article 31 regards compulsory licences of patents to ensure national emergencies in developing countries can be effectively managed. Limiting the effect of Article 31 is likely to have extremely negative effects on managing local and global epidemics.